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Senators Leahy and Lee Introduce Bill to Reform Section 702 of Foreign Intelligence Surveillance Act

Today, Senators Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) introduced a bill that would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) with several reforms.

November 17, 2017

PRESS RELEASE
For Imme­di­ate Release: Novem­ber 17, 2017
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Today, Senat­ors Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) intro­duced a bill that would reau­thor­ize Section 702 of the Foreign Intel­li­gence Surveil­lance Act (FISA) with several reforms. The bill is patterned on the USA Liberty Act, which was repor­ted out of the House Judi­ciary Commit­tee last week, and shares the same name. The Senate version, however, contains signi­fic­antly stronger protec­tions for Amer­ic­ans’ privacy, although its reforms are less sweep­ing than those contained in the USA RIGHTS Act sponsored by Senat­ors Wyden and Paul.
 
Section 702 was enacted in 2008 to allow the govern­ment to obtain the commu­nic­a­tions of foreign targets located over­seas without obtain­ing a warrant, even if the targets are commu­nic­at­ing with Amer­ic­ans or the commu­nic­a­tions are stored in the United States. In the past year, lawmakers from both parties have expressed concerns that the warrant­less surveil­lance sweeps in a poten­tially massive amount of Amer­ic­ans’ commu­nic­a­tions with insuf­fi­cient restric­tions on how that data is handled. The law will expire at the end of Decem­ber unless Congress reau­thor­izes it.
 
The Leahy-Lee version of the USA Liberty Act would require U.S. offi­cials to obtain warrants before access­ing the content of Amer­ic­ans’ commu­nic­a­tions, thus curb­ing the prac­tice known as “back­door searches.” Unlike the House version, it does not include excep­tions for searches conduc­ted for foreign intel­li­gence purposes or searches of people who have some link to suspec­ted terror­ist­s—ex­cep­tions that privacy advoc­ates fear would swal­low the rule. The Leahy-Lee bill also would clarify that the govern­ment can collect only commu­nic­a­tions to or from legit­im­ate surveil­lance targets, and not commu­nic­a­tions that merely mention inform­a­tion asso­ci­ation with them (so-called “about” collec­tion). And it contains several other more modest changes to enhance trans­par­ency and account­ab­il­ity.
 
“This bill fixes the most seri­ous prob­lem with Section 702 surveil­lance today: the govern­ment’s abil­ity to read Amer­ic­ans’ e-mails and listen to their tele­phone calls without a warrant,” said Eliza­beth Goitein, co-director of the Bren­nan Center’s Liberty and National Secur­ity Program. “In contrast to the House version, the Leahy-Lee bill rejects the danger­ous notion that the govern­ment can waive Amer­ic­ans’ consti­tu­tional rights by citing a ‘for­eign intel­li­gence’ or coun­terter­ror­ism purpose. And it bans, once and for all, the legally dubi­ous prac­tice of collect­ing commu­nic­a­tions to and from people who are not them­selves legit­im­ate targets of surveil­lance.
 
“The bill is clearly a comprom­ise meas­ure, and there are import­ant reforms it does not contain. It does­n’t require any court approval to search for and access certain inform­a­tion about Amer­ic­ans’ commu­nic­a­tions, known as ‘metadata.’ It does noth­ing to narrow the pool of permiss­ible foreign target­s—a crit­ical protec­tion, not just for inno­cent foreign­ers, but for the millions of Amer­ic­ans who commu­nic­ate with them. And it would unne­ces­sar­ily increase crim­inal penal­ties for mishand­ling clas­si­fied inform­a­tion. On balance, however, it repres­ents a signi­fic­ant improve­ment over current law and prac­tice, and a very prom­ising devel­op­ment in the reform debate.”
 
Read more about Section 702 and the Bren­nan Center’s work on Liberty & National Secur­ity.
 
For more inform­a­tion or to speak with an expert, contact Naren Daniel at (646) 292–8381 or naren.daniel@nyu.edu.

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